(a) Whether or not specifically stated, it is an element of
every offense defined in this article that the sexual act was
committed without the consent of the victim.

(b) Lack of consent results from:

(1) Forcible compulsion;

(2) Incapacity to consent; or

(3) If the offense charged is sexual abuse, any circumstances
in addition to the forcible compulsion or incapacity to consent in
which the victim does not expressly or impliedly acquiesce in the
actor's conduct.

(c) A person is deemed incapable of consent when such person
is:

(1) Less than sixteen years old;

(2) Mentally defective;

(3) Mentally incapacitated;

(4) Physically helpless; or

(5) Subject to confinement or supervision by a state or local
government entity, when the actor is a person prohibited from
having sexual intercourse, or causing sexual intrusion or sexual
contact pursuant to subsections (a) and (b) of section ten of this
article.
Note: WV Code updated with legislation passed through the 2016 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.